Legally Armed: V20N10

By Teresa G. Ficaretta, Esq. and Johanna Reeves, Esq.

Less Lethal Devices: Regulation Under Federal Law

The types of less lethal devices available to law enforcement agencies and consumers have dramatically increased in the last 20 years, raising questions concerning their regulation under the federal firearms and explosives laws. This article will address diversionary devices, conducted electrical weapons, 37mm and 40mm launchers and the projectiles they fire, smoke bombs and grenades, and rubber pellet grenades and address their regulation under federal law. This article will not address restrictions on less lethal devices imposed under state or local law.

I. Legal Background

1. Gun Control Act of 1968

The Gun Control Act of 1968 (GCA) regulates “firearms.” The term “firearm” is defined to include any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; and any destructive device. The term “destructive device” is defined to include any explosive, incendiary, or poison gas bomb, grenade, or mine, and any weapon that will expel a projectile by the action of an explosive and which has a bore of more than one-half inch in diameter. The term specifically excludes any device that is not designed or redesigned for use as a weapon, and any device which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device.

All firearms, including destructive devices, must generally be transferred interstate through federal firearms licensees (FFLs). FFLs must keep records of acquisitions and dispositions of firearms and must record transfers to non-licensees on ATF Form 4473.

2. National Firearms Act

The National Firearms Act (“NFA”) requires that “firearms” be registered by their manufacturer, importer, or maker, and that transfers of firearms be approved in advance by the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). The term “firearm” is defined to include destructive devices, and the term “destructive device” is defined in the same way as under the GCA.

3. Federal Explosives Laws

The federal explosives laws in Title 18 of the United States Code, Chapter 40, regulate commerce in “explosive materials.” The term “explosive materials” is defined as explosives, blasting agents, and detonators. “Explosives” is defined as any chemical compound mixture or device the primary or common purpose of which is to function by explosion. The definition requires ATF to publish an annual list of explosives that fit within the statutory definition. The most recent list was published on October 23, 2015, and is available on ATF’s website at https://www.atf.gov/file/102106/download.

The federal explosives laws make it unlawful for any person other than the holder of a federal explosives license or permit to transport or receive explosive materials. The law also prohibits the distribution of explosive materials by a holder of a license or permit to any person other than a licensee or permittee. All persons engaging in the business of importing, manufacturing, or dealing in explosive materials must obtain a license issued by ATF, and all licensees and permittees are required to create and maintain records of their acquisition and distribution of explosive materials. All persons are required to store explosive materials in accordance with regulations issued by ATF.

Exemptions from the requirements of the federal explosives laws are provided, in pertinent part, for the transportation, shipment, receipt, or importation of explosive materials for delivery to any federal or state agency; for small arms ammunition and components thereof; and for the manufacture under the regulation of the U.S. military of explosive materials for their official use.

ATF regulations at 27 C.F.R. 555.11 define “ammunition” as follows:

Small arms ammunition or cartridge cases, primers, bullets, or smokeless propellants designed for use in small arms, including percussion caps, and 3/32 inch and other external burning pyrotechnic hobby fuses. The term does not include black powder.

ATF’s longstanding position is that the small arms ammunition exemption applies only to .50 caliber or smaller rifle or handgun ammunition, as well as certain shotgun ammunition.

II. Less Lethal Devices and ATF Regulation

1. Diversionary Devices

Diversionary devices are non-lethal explosive devices used to disorient the enemy or target. They include flash bangs, stun grenades, noise flash diversionary devices, flash grenades, or sound bombs, devices that produce a very bright flash of light and loud bang without causing permanent injury. Flash bangs are standard equipment for the military, law enforcement agencies, and correctional personnel.

ATF regulates diversionary devices as destructive devices under the GCA and NFA. Accordingly, manufacturers of such devices must obtain a federal firearms license, pay special (occupational) tax under the NFA, and register the devices in the National Firearms Registration and Transfer Record. Diversionary devices may only be transferred pursuant to an approved NFA transfer application and must be transferred interstate through FFLs. FFLs may transfer diversionary devices to non-licensees through approved Form 4 transfer applications and by recording the transaction on ATF Form 4473. However, licensees may transfer diversionary devices to federal, state, or local law enforcement agencies directly without going through a FFL if the licensee obtains a purchase order from the government agency.

One common misunderstanding concerning diversionary devices and other less lethal devices concerns contractors of government agencies. Contractors who provide security at federal, state, and local correctional facilities are often required by contract to maintain a certain number and type of firearms, including diversionary devices. Private correctional facilities may also require security personnel to be equipped with diversionary devices. Significantly, contractors of government agencies are not exempt from the requirements of the GCA or NFA. Accordingly, transfers of all firearms, including destructive devices, to contractors must be made through an FFL in the contractor’s state of residence. This requirement can make it prohibitively expensive for contractors to obtain diversionary devices, as the contractor must pay a $200 transfer tax for each device. Moreover, ATF processing time for Form 4 tax-paid transfer applications is nine months at the time of this writing. These statutory and regulatory requirements lead many contractors to obtain an FFL and pay special (occupational) tax under the NFA. A qualified FFL may then acquire registered devices directly from a manufacturer in interstate commerce on a tax-free basis.

Diversionary devices contain explosive materials and are also subject to the requirements of the federal explosives laws. Accordingly, persons manufacturing such devices must hold a license as a manufacturer under the federal explosives laws. Persons who distribute diversionary devices must also hold a license as a dealer under the federal explosives laws. Diversionary devices must be stored in magazines meeting all the requirements of ATF storage regulations, and record keeping requirements also apply. Diversionary devices may only be transferred to persons holding a federal explosives license or permit, with certain exceptions noted below.

As stated above, the federal explosives laws provide an exemption for explosive materials acquired by or distributed to federal, state, or local government agencies. However, unlike the GCA, ATF interprets the government exemption in the federal explosives laws as applying to contractors of federal, state, and local government agencies. Manufacturers of diversionary devices may lawfully distribute them to persons who have contracts with federal, state, or local government agencies and need not ensure that the contractors have a federal explosives license or permit. Companies holding contracts with state or local government agencies are required to store diversionary devices in magazines meeting the requirements of ATF regulations. Contractors of federal agencies are exempt from storage requirements.

ATF has recognized the challenges presented for state and local police departments, including bomb squads, in transporting explosive materials, including diversionary devices, from an approved magazine to the site of a critical incident. ATF Rul. 2009-3 (available on ATF’s website at https://www.atf.gov/explosives/docs/2009-3-storage-explosives-law-enforcement-explosives-response-vehicles/download) held that state and local bomb technicians and explosives response teams may store explosive materials in official response vehicles parked inside a secured building if the vehicle and the building are locked and secured and not more than 50 pounds net explosives weight total is stored in the building. The ruling also allows storage of explosive materials in unattended official response vehicles parked at outdoor locations if the vehicles are locked, have an additional security feature (such as an alarm), and no more than 20 detonators and 2.5 pounds of explosive materials are in the vehicle. The ruling outlines additional criteria for storage of explosives in official response vehicles and should be reviewed carefully by state and local officials to ensure they are complying with federal law.

2. Conducted Electrical Weapons

Conducted electrical weapons (CEWs) use compressed gas to project two probes at a target. Both probes must make contact for the device to be effective on its intended subject. An electrical signal is transmitted through the muscle tissue where the probes make contact with the body or clothing. An automatic timing mechanism applies the electric charge, ideally resulting in a loss of the attacker’s neuromuscular control and ability to perform coordinated actions. Manufacturers of devices indicate they use a signal of up to 50,000 volts to completely override the target’s central nervous system’s ability to communicate voluntary movement. Actual voltage in the body is closer to 1200 volts.

Early versions of CEWs were classified as firearms by ATF. ATF Rul. 76-6 addressed a hand-held device designed to expel, by means of an explosive, two electrical contacts connected by wires to a high-voltage source (the Taser Model TF1). ATF determined the device expelled projectiles by the action of an explosive and thus was regulated as a firearm under the GCA. A subsequent ATF ruling, ATF Rul. 80-20, clarified that similar devices with a hand grip bent at an angle to the bore and having a rifled bore were not subject to the NFA.

Most modern CEWs generally do not expel a projectile by the action of an explosive and are not built on the frame or receiver of a firearm. Such CEWs are not regulated as firearms under federal law.

Review of CEWs available for commercial sale (some for civilian use) indicates that all or most use compressed gas to project the electrical probes and that CEWs are not regulated as firearms under federal law. Questions about classification of a particular CEW should be referred to ATF’s Firearms and Ammunition Technology Division.

3. Launchers in 37mm and 40mm + Projectiles

Flare launchers in 37mm and 40mm have a bore diameter of more than ½ inch and expel a projectile by the action of an explosive or other propellant. Thus, the devices could be regulated as destructive devices. However, ATF has a long standing position that such launchers designed for expelling chemical agents such as tear gas or pyrotechnic signals are not weapons and are not regulated as destructive devices. This position was made clear in ATF Rul. 95-3, which addressed 37/38mm gas/flare guns in combination with certain types of ammunition. In this ruling ATF states that devices designed for expelling tear gas and pyrotechnic signals are not destructive devices.

However, the ruling also clarified that when the launchers are possessed with “anti-personnel” ammunition, the combination of the two becomes an instrument of offensive or defensive combat that is capable of use as a weapon. Accordingly, the ruling held that any person possessing a 37/38mm gas/flare gun with which cartridges containing wood pellets, rubber pellets or balls, or beanbags will be used must register the making of a destructive device before acquiring such ammunition. Although not specifically addressed in the ruling, the holding would also cover foam baton projectiles that may be fired in a 37/38mm or 40mm launcher.

Since 1995 a number of other types of “anti-personnel” ammunition for use in 37/38mm and 40mm devices are available in the commercial market. A variety of manufacturers make projectiles filled with capsaicin and red pepper for use in launchers. These types of projectiles are intended as a chemical irritant. There are no published ATF rulings addressing whether the combination of a 37/38mm launcher and these projectiles are considered destructive devices. However, because the projectiles clearly have anti-personnel use, the launcher combined with the device may fit within the rationale of ATF Rul. 95-3.

ATF’s position on regulation of the launcher plus anti-personnel ammunition poses a challenge for manufacturers and distributors. If a manufacturer or distributor ships a launcher plus anti-personnel projectiles to the same purchaser, the manufacturer/distributor has likely made a destructive device in violation of the law. Likewise, a purchaser who acquires a launcher plus anti-personnel ammunition would be in possession of an unregistered destructive device.

Our discussion of ammunition for 37mm and 40mm launchers would not be complete without mention of the federal explosives laws. ATF has published articles in the agency’s Explosives Industry Newsletter (available on ATF’s website at https://www.atf.gov/explosives/download-federal-explosives-industry-newsletters), stating that cartridges containing rubber balls, wood baton, or bean bags often contain primers and smokeless propellant (see the August 2015 newsletter). Because this type of ammunition is not suitable for use in small arms, it is not exempt from the requirements of the federal explosives laws. Accordingly, manufacturers of such projectiles must obtain a license under the federal explosives laws, store explosive materials in approved magazines, keep records, and comply with all other requirements of the federal explosives laws. In addition, it is unlawful for manufacturers to distribute such anti-personnel ammunition to any person who does not hold a federal license or permit. Exemptions from the license/permit requirement are spelled out above in our discussion of diversionary devices.

4. Smoke Bombs and Smoke Grenades

ATF addressed smoke producing devices in an Explosives Industry Newsletter published in June 2013. In that article, ATF indicated that smoke bombs come in two forms, either as a smoke ball or a smoke candle. Smoke balls are cherry-sized spheres of clay or cardboard filled with a smoke-generating composition that produces a forceful jet of colored smoke for several seconds. A smoke candle, also called a smoke generator or smoke canister, is a cardboard tube, usually 1.5 inches in diameter and several inches long that resembles a large firecracker with a fuse. Smoke candles create a thick cloud of smoke for up to several minutes.

Smoke bombs are used for sewer inflow leak detection, obscurant for law enforcement applications, firefighter training, special effects, HVAC testing, truck and trailer leak detection, and smokescreens for paintball games. According to ATF, smoke bombs are typically initiated with an external fuse often used in the fireworks industry.

The 2013 newsletter article states that smoke bombs do not fit within the regulatory exemption for consumer fireworks because they do not meet the appropriate U.S. Department of Transportation UN classification or because of their intended use. The newsletter article states that a determination by ATF would be required to establish if a particular smoke producing device fits within the exemption.

The article also addresses smoke grenades, which are devices that release smoke when a pin is pulled. These devices are used by military personnel for signaling or as a screening device for troop movements. They are also used for law enforcement operations. ATF explains that smoke grenades emit much more smoke than smoke bombs and typically contain a fuze, which is used to initiate large explosive ammunition or grenades.

ATF explains that both fuses (chemical composition used for fireworks) and fuzes (mechanical initiation used for grenades and large ammunition) contain low explosives. Consequently, smoke bombs and smoke grenades are regulated under the federal explosives laws. However, ATF notes that certain signaling devices may be exempted from the regulations as Special Explosive Devices upon written request to ATF.

Based upon the ATF newsletter article, manufacturers and distributors of smoke bombs and smoke grenades must be licensed under the federal explosives laws. They must store explosive materials in magazines meeting the requirements of ATF’s storage regulations and keep records of acquisition and distribution of explosive materials. Manufacturers and distributors may lawfully distribute smoke bombs and smoke grenades only to persons who hold a federal explosives license or permit. See the discussion above, relating to diversionary devices, for applicable exemptions. Persons with questions about regulation of a particular product should contact ATF’s Explosives Industry Programs Branch to request a determination.

5. Rubber Pellet Grenades

Rubber pellet grenades are used by law enforcement agencies for crowd control and tactical use. The devices are thrown or launched into a crowd and discharge rubber pellets in a circular pattern. Some of the devices have only rubber pellets and others may include an irritant powder or a flash bang effect. If there is a flash bang effect the devices are destructive devices under federal law. All the rubber pellet grenades are made with flash powder and fuses, which are explosive materials.

ATF has not published any written guidance on rubber pellet grenades. However, informal consultations with ATF indicate the agency believes these devices are likely explosive grenades regulated as destructive devices. Because they are made with explosive materials, they are also regulated under the federal explosives laws. Manufacturers and distributors of rubber pellet grenades who wish to obtain classifications concerning the devices should contact ATF’s Explosives Industry Programs Branch.

III. Conclusion

Many less lethal devices are subject to regulation under the federal firearms and explosives laws. Manufacturers, importers, and distributors of such devices must ensure they understand the statutes that apply to their products to ensure they are appropriately licensed and that storage and distribution of the devices is lawful. Purchasers of less lethal devices, including law enforcement agencies, contractors for law enforcement agencies, and consumers, should also be familiar with federal regulations to ensure they are not receiving or possessing firearms or explosives in violation of law.

***The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion. You should not rely or act on any information contained in this article without first seeking the advice of an attorney. Receipt of this article does not establish an attorney-client relationship.

About the authors –

Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (www.reevesdola.com). For more than ten years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls.

Teresa Ficaretta is one of the country’s foremost experts on ATF regulations under the Gun Control Act, the National Firearms Act, the Arms Export Control Act and federal explosives laws. Before joining Reeves & Dola in 2013, Teresa served as legal counsel to ATF for 26 years, followed by two years as Deputy Assistant Director in Enforcement Programs and Services. They can be reached at 202-683-4200.